Photographer Sends C&D To Something Awful Over Photo 'Shopped To Add A Butt To A Bird

from the this-should-be-low-key-and-uneventful dept

The internet is filled with meritless cease and desist letters. Some are simply obeyed because people see legal letterhead and panic. Others are fought more vigorously, much to the dismay of those sending the C&Ds, as the fallout is almost always completely negative.

Some C&Ds are just sent to the wrong people -- people whose primary plane of existence is the internet. These are the worst of all (for the senders). It's perhaps too much to ask that lawyers and their clients do a little research before firing off a cease and desist letter. But a little knowledge goes a long way. You may think you're just smacking down some clueless IP "thief," when in all reality, you're jabbing a stick into a hornet's nest, along with most of your arm.

Richard "Lowtax" Kyanka of Something Awful just received a C&D (posted below) from an IP law firm representing photographer Mia McPherson. Those of you familiar with Something Awful will be familiar with its feature, Photoshop Phriday, which is a weekly collection of themed image manipulations.

Those of you familiar with Something Awful's response to legal action will recall the utter destruction of cartoonist Donna Barstow, who claimed the site "stole" her cartoons. The cartoons in questions were posted in a forum dedicated to the commentary on political cartoons. As such, the posting of the cartoons is considered fair use. This didn't stop Barstow from wandering all over the internet digging holes for herself, making a lot of noise about copyright and theft, while ignoring the fair use aspects staring her directly in the face.

This promises to be no different. Even if Something Awful's case might be a little weaker than its joust with Donna Barstow, there's no indication that it will let this C&D slide by without extensive comment.

Here's the text of the C&D (also embedded below).

Dear Mr. Kyanka:

We represent Mia McPherson with respect to certain intellectual property matters. Ms. McPherson is a wildlife photographer located in the Salt Lake City area. Recently we viewed your website at http://www.somethingawful.com/photoshop-phriday/put-butts-things/4/ and were surprised to see one of Ms. McPherson's photographs in an article entitled Put Butts on Things! by Andrew "Garbage Day" Miller. Ms. McPherson's photograph had been altered to remove her copyright notice and a butt was placed over the red-tailed hawks face. A copy of infringing image is attached hereto. Also attached, is a copy of Ms. McPherson's photograph including the copyright notice.

Ms. McPherson is very selective as to those who are allowed to use her photographs and she has not approved of the use of any of her photographs on your website. The unauthorized use of our client's photographs constitutes copyright infringement pursuant to 17 U.S.C. §§ 101 et seq. Pursuant to the Copyright Act, Ms. McPherson is entitled to damages for the infringement. Moreover, removal of her copyright notice is a violation of 17 U.S.C. § 1202.

To resolve this matter amicably, we must demand that you remove the infringing material 'from the website immediately. Additionally, we must also demand that you provide compensation to Ms. McPherson in the amount of $1,250.00 per infringing photograph, plus $2,500.00 as the statutory minimum for the removal of Ms. McPherson's copyright notice.

Additionally, we will require a written agreement wherein you agree not to copy any of her photographs in the future without her express written consent. Additionally, please consider this letter a demand for an evidentiary hold on all documents, whether in hard or electronic form relating to the above-referenced website and the use of Ms. McPherson's photographs. Any destruction of evidence after the date of this letter will be judicially pursued with a request for sanctions and all other remedies agreed to by the Court.

We look forward to your response within 10 days of the date of this letter. Should you wish to discuss this with me please contact me directly.

First off, while Something Awful may be hosting the image, it was submitted by another user. This isn't quite the same as posting an image in the forums (where it's hosted by a third party service). Something Awful staff actually have to upload the image themselves to the website, which likely decreases any protections it might have under the DMCA's safe harbor provisions.

The removal of the image probably wouldn't have been a problem (although I imagine SA would still have fought that demand on principle), but the IP firm and the photographer are pursuing damages. One has to wonder how exactly a butt photoshopped onto a photo by someone else diminishes the market for the original, but that sort of questioning gets you nowhere. Fortunately, the law firm chose not to employ the exaggerated (and often, just plain wrong) verbiage Mia McPherson does when discussing infringement.

Why did I feel punched in the gut? Look carefully at my Short-eared Owl image, notice any thing odd about the face? The quality of the background? I sat at my screen fuming because some person had taken MY image without my permission and digitally manipulated it. What this copyright infringer has done is illegally create what is called a “derivative work“. This is what the U.S. Copyright Office has to say about derivative works:

"How much do I have to change in order to claim copyright in someone else’s work?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another’s work, no matter how much you change it, unless you have the owner’s consent."

While Arne Olav (the redditor who created the animal mashup) definitely used McPherson's photo without permission, he made no claim to the copyright nor did he preemptively declare it a derivative work. As McPherson notes, he didn't even strip out her watermark.

She then hunted down the original photo of the second animal combined with her photo of an owl (a baby tapir) and then makes this claim:

I won’t post the actual photo here because… well that would be a VIOLATION of copyright laws.

Well, except that it wouldn't. It would be used as part of her commentary on the "theft" of her photos and would be clearly utilized for illustrative purposes. She could have almost definitely used it, but she doesn't seem to recognize that fair use exists. Her photos' appearance anywhere else on the web is automatically assumed to be infringement (which she repeatedly calls "theft"). She continues:

Please bear in mind that Arne Olav flipped the image horizontally before he stole the head of the baby Tapir and mashed it up with my owl.

Flipped the image??!! The horror… Somehow this is presented as being equally as wrong as using the image without permission.

It's a good thing McPherson has hired an IP law firm to represent her, as she seems a bit clueless as to how Reddit actually works. (Speaking of hornets' nests you wouldn't want to be elbow-deep in…)

I will eventually send DMCA Takedown Notifications to Reddit to have the image removed from Arne Olav’s page there.

Arne Olav's "page" is actually a subreddit and, like every image on Reddit, his mashups are actually hosted at third-party hosts like imgur. So, while she could send a DMCA to Reddit, to block the link, it seems like going to the actual host would make more sense, if she's really so offended by such a use, and so determined to ignore the existence of fair use.

Back to the case at hand. Something Awful has been doing Photoshop Phriday for years, with a minimum of complaints from rights holders. (It's not as though there haven't been any, but the number of legal threats it has faced pales in comparison to the number of photos used.) This doesn't necessarily mean there's no infringement going on (although many of the submissions would fall under fair use) but that most right holders are either unaware this is happening or understand that it doesn't have a deleterious effect on their ability to sell their creations.

McPherson, however, sees the internet as nothing more than a den of thieves. Her post also points out that she's taking action against Pinterest and hates that site as much as she does Tumblr. (She's got something against Google as well, unsurprisingly.) According to Chilling Effects, McPherson has sent out 14 takedown requests since 2011, most of those routed to Blogger, but Chilling Effects is hardly comprehensive, and many sites do not pass their takedowns on to that site.

No doubt Something Awful's legal representation, Leonard J. Crabs, will post a highly entertaining and endlessly profane defense of the website's actions. If nothing else, SA's legal defense team (including the highly entertaining and endlessly profane Cliff Yablonski) can point to the recent legal decision that found a majority of Richard Prince's appropriation art to be protected by fair use. If Prince can paste a someone else's photo of a guitar across someone else's photo of a dreadlocked tribesman, then certainly someone can 'shop a butt across a bird's face.

Of course, fair use is still viewed as a defense rather than an assumed right. The stripping of McPherson's watermark can be problematic, but there would need to be some discovery directed towards when that happened (by the contributor or by SA itself) or if the watermark even was present on the "original" photo grabbed by "BaconButts" to use as the base for his/her Butts on Things! submission.

The only thing that can be said for certain is that this action won't portray McPherson in the best light. There will likely be a very negative reaction to her demand for $4,000 to cover the "damages" caused by a silly photoshopping of a bird with a butt for a face. No doubt this will simply confirm her prejudices about the internet in general.

Oh man oh man oh man, I hope this drags Leonard J. Crabs outta 'retirement'. They haven't used him in years (as far as I know - I mean who actually goes to the SA frontpage these days? Not the cool GBS2.1 kids, that's for sure.)

It's just a new revenue stream

She just can't sell the original photos for $4000, so she posts it on the internet and hopes that someone will be creative with the photo so that she can then sue. It's a new creative art form of extorsion. Make your pictures available on the internet and then sue over them.

MY GAWD! Another C and D ANOMALY!

Meanwhile, tens of millions of copyrights are in effect for books, music, movies, and so on, bringing deserved income to creators (and even to much too numerous of grifters on that value), but never a mention here of the everyday good.If you advocate taking copyright away from Disney (after 80-some years), then FINE! -- But don't at same time empower today's mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.

so what?

Ms. McPherson clearly enjoys beating her head against the wall, a process which seems to have impaired her ability to learn about such topics as copyright law. But if that's what she enjoys, why not let her destroy her own reputation and perhaps even impoverish herself through expensive legal actions?

Re: Re: MY GAWD! Another C and D ANOMALY!

Re: MY GAWD! Another C and D ANOMALY!

What may be more interesting to you is that Ms. McPherson is getting together a class-action lawsuit against Google for "hot linking" to photos on its image search results. She did talk to a lawyer about that back in February. If that hasn't gone anywhere it may be that providing direct links to the images posted on the copyright owner's own website is hardly an infringing act. She seems to think that this is contrary to Google's own stated policy as specified in their blogger.com rules. Specifically:

I hope Ms. McPherson is reading this because it is directed towards her. I like wildlife photography and I have a number of my own photos. I like Mia McPherson's work. The SomethingAwful transformation of her photo strikes me as just stupidly juvenile and I really have no interest in looking at it. My reaction is precisely why the altered photo is not infringing. It shows that the existence of a butt-altered bird photo will not affect the market for her unaltered photos. Just as importantly, it shows that the photo has been transformed in a way that provokes a completely different response than that of the original. It is a fair use transformation of the original photo.

Mia, don't waste your time pursuing fair use postings of your images. You will lose in court. Arne Olav was being pretty accommodating in not challenging the DMCA takedown. In his letter to you he even said he would have removed the altered photos if you had requested him directly. Don't mistake his accommodation as confirming that your understanding of copyright law is correct. His transformations were also fair use and he does not need your permission to make them or post them. That may annoy you to no end, as a photographer, but copyright does have limitations. You write in response to his letter:

"I do sell my images to editors and publishers for book, magazines and other publications so have my image misused this way can devalue them."

Neither Olav's transformations or Miller's is going to devalue your photos. In a comment you write:

"Only The owner of the Tapir image and I own the right to make derivative works from our files."

You are ignoring fair use transformations so that statement is incorrect. They author of an unauthorized derivative work does not get a copyright to the transformed work, but they may escape liability via fair use.

Don't let your emotional reactions to the alterations cloud your mind to the business aspects. Focus on real infringement that affects your bottom line and don't limit that focus to just running around the web endlessly filing DMCA notices or sending out C&D letters.

Re: Re:

If THIS is amicable, I'd hate to see adversarial...

To resolve this matter amicably, we must demand that you remove the infringing material 'from the website immediately. Additionally, we must also demand that you provide compensation to Ms. McPherson in the amount of $1,250.00 per infringing photograph, plus $2,500.00 as the statutory minimum for the removal of Ms. McPherson's copyright notice.

If they regard issuing demands for $4k plus other actions as amicable, I'd hate to see it if they were really pissed!

Re:

Decreases? More like eliminates. Safe harbor laws are meant to protect, for example, this comments section. It's not meant to protect content that is actively reviewed and posted by the site.

Not that clear. I ran this by 3 copyright lawyers over the weekend after Tim wrote up his initial draft, and the response they generally came back with was "well, it's complicated." It *may* remove the safe harbors, but there are ways which they could still be protected. But delving into the details there seemed beyond the scope of this post...

Streisand in

Re: MY GAWD! Another C and D ANOMALY!

don't at same time empower today's mega-corporations to steal creative works from the poor.

What, like you do by dribbling on about the "everyday good" of copyright? You talk about that all the time but have yet to provide one example of the kind of thing you mean.

Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.

Copyright was created for corporations by Queen Elizabeth 1 of England. After that, as time went on, authors were given a share of the profits, but make no mistake, the primary beneficiaries of copyright will always be the publishers/distributors.

So, what's this "everyday good," then? How does it manifest? How can the little guy benefit?

Re:

Decreases? More like eliminates. Safe harbor laws are meant to protect, for example, this comments section. It's not meant to protect content that is actively reviewed and posted by the site.

While it certainly could eliminate them, it really shouldn't. Even an unreasonably thorough review could miss the copyright status of most material out there. Especially out of print items with no internet presence.